THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA
CORAM: HON. JUSTICE A.E.N. MPAGI-BAHIGEINE, DCJ
HON. JUSTICE A. TWINOMUJUNI, JA
HON. JUSTICE S.B.K. KAVUMA, JAHON.
HON. JUSTICE A.S NSHIMYE, JA
HON. JUSTICE M.S. ARACH AMOKO, JA
CONSTITUTIONAL PETITION NO.42 OF 2010
HON. ANIFA BANGIRANA KAWOYA ….PETITIONER
V E R S U S
ATTORNEY GENERAL }
NATIONAL COUNCIL FOR
HIGHER EDUCATION }…………RESPONDENTS
Constitutional petition – recalling of certificate of equivalence by the National Council for Higher Education after the matter had been decided upon by the High Court – whether this act was constitutional
The brief facts of this petition are that the National Council Council for Higher Education issued a certificate of Equivalence to the petitioner in 2005. That in 2010 the legality of the said certificate was unsuccessfully contested in the High. That after the decision of the high court, the 2nd respondent recalled the petitioner’s said certificate and cancelled it. The petitioner therefore, challenged the decision of the 2nd respondent hence this petition
Held : The petition is allowed on all the grounds with costs.
JUDGMENT OF THE COURT:
The petitioner filed this petition seeking declarations and remedies stated therein as follows:-
“Your humble petitioner showed;-
That the act of the National Council for Higher Education recalling the Certificate of equivalence issued to your petitioner on December 08, 2005, serial No. NCHE/PAR/05/2005 for further investigation by a letter dated 25th August, 2010 is inconsistent with and or is in contravention of articles 28(1), 42 and 44 of The Constitution namely the right to a fair hearing and a right to just and fair treatment in administrative decisions.
That the act of the National Council for Higher Education recalling the Certificate of equivalence by letter dated 25th August 2010, upon a directive by Maj. (Rtd) Kakooza Mutale the Senior Presidential Advisor contravenes your petitioners’ right to natural justice and to fair and just treatment in administrative decisions and it thus contravenes Articles 28(1), 42 and 44 of the constitution and is therefore null and void.
That your petitioner’s Certificate of equivalence was recalled by the National Council for Higher Education without giving her a hearing and therefore the recall contravened articles 28(1), 42 and 44 and is thus null and void.
That the matter of your petitioner’s academic qualifications upon which the Certificate of equivalence was recalled is res judicata the same having been fully and finally determined by a competent court of law, to wit:- The High Court of Uganda at Masaka in Election Petition No.1 of 2006 and subjecting the petitioner to a fresh investigation and hearing of this matter violets your petitioner’s rights under article 28(1), 42 and 44 of The constitution.
That the act of the National Council for Higher Education recalling the Certificate of equivalence without giving me a hearing has opened flood gates for frivolous litigation against me brought in bad faith thus infringing/violating my right to participate in politics enshrined under article 38(1) of The Constitution.
Therefore your petitioner prays for the following declarations orders;-
A declaration that the recalling and cancellation of the petitioner’s Certificate of equivalence issued by the National Council for Higher Education on December 08, 2005 was inconsistent with and or in contravention of Article 28(1), 42 and 44 of the Constitution which guarantee her a right to a fair hearing and a right to just and fair treatment in administrative decisions is thus null and void.
A permanent injunction against the National Council for Higher Education restraining it from recalling and/or cancelling the Certificate of equivalence issued to your petitionER on December 08,2005 or any other such order or act.
A declaration that all matters concerning the academic qualifications of the petitioner in so far as they relate to elections and her academic competence to stand for elective office are res judicata.
Cost of the suit.”
The petition is supported by an affidavit deponed to by the petitioner filed in this Court on 26th October 2010 and another affidavit in rejoinder filed on 20th December 2010. The affidavits contain detailed background and reasons why she filed this petition against the respondents.
The first respondent filed an answer to the petition which is also supported by an affidavit sworn by one Nyangoma Ester, a State Attorney of the 1st respondent, deponed to on 5th October 2010. It is also supported by two affidavits sworn by Professor Abud B. Kasozi, the Executive Director of the second respondent, deponed to on 5th November 2010 and 22nd December 2010.
The background to the petition as can be ascertained from the above mentioned affidavits is as follows:-
The petitioner is a Woman Member of Parliament for Sembabule District.
On 18th October 2005, she appeared before the National Council for Higher Education, (NCHE, the 2nd respondent) and requested that her academic qualifications be verified and equated for purposes of the 2006 National Elections as she did not posses the Uganda Advanced Certificate of Education “A level Certificate” which is the minimum requirement under the Uganda Constitution to qualify for election as a member of Parliament.
Among the papers the petitioner presented to NCHE was a Bachelor of Arts Degree in Development Studies from Nkumba University issued to her on 23rd April 2005 together with its academic transcript.
On the 8th December 2005, respondent (NCHE) issued to the petitioner a Certificate of Equivalence to the effect that her Bachelor of Arts Degree in Development Studies from Nkumba University had satisfied the National Council of Higher Education that she had completed a formal education of “Advanced level or its equivalent.”
Before that communication, the petitioner had received a letter from the then Ag. Executive Director Mr. Yeko Acato, NCHE, dated 4th November 2005 which stated as follows:-
“Re: Equating Your Academic Qualifications
This is to certify that your academic qualification, B.A. (Development Studies) attained from Nkumba University is recognised for the purposes of work, further studies and elections. Your other qualifications are still being verified.”
Apparently all this was done after due inquiry by NCHE from Nkumba University and Uganda Police both of whom wrote to NCHE stating that the B.A. (Development Studies) from Nkumba University was a genuine qualification.
Following this clearance from NCHE, the petitioner submitted her documents for nomination in respect of 2006 Parliamentary Elections and she was duly nominated. She was subsequently elected Woman M.P. for Sembabule during the elections held in February 2006.
Her opponent, one Mrs Joy Kabatsi, who lost the election petitioned the High Court of Uganda for declaration that, among other irregularities allegedly committed by the petitioner, she was not qualified to be elected a Member of Parliament.
The High Court and the Supreme Court held that the petitioner was qualified for election as an MP but the Supreme Court nullified her election on other ground. A bye election was held which the petitioner won, hence her still being the Member of Parliament for Sembabule District in the 8th Parliament.
To her surprise, on 2nd September 2010, the petitioner received a letter from NCHE recalling the Certificate of Equivalence they had issued to her on 8th December 2005. Attached to the letter was a written complaint signed by one Major Kakooza-Mutale purportedly on behalf of the Office of the President, which stated that he had irrefutable evidence that the petitioner’s academic qualifications were forgeries and urging the NCHE to recall and cancel it. The petitioner interpreted this to be an attempt to prevent her from being nominated as a Woman Member of Parliament since nominations were due in a matter of weeks from the date she received the letter from NCHE. According to her, neither the Office of the President nor the NCHE gave her an opportunity to be heard in defence of her academic documents before this letter recalling the Certificate of Equivalence. The petitioner decided to file this petition.
 THE ISSUES:
At a Scheduling Conference held before the Registrar of this Court, the following issues for determination were agreed:-
Whether the petition raises issues for constitutional interpretation.
Whether the act of the National Council for Higher Education recalling the Certificate of Equivalence issued to your petitioner on December 08, 2005, by a letter dated 25th August, 2010 is inconsistent with and or is in contravention of Articles 28(1), 42 and 44 of the Constitution namely the right to a fair hearing and a right to just and fair treatment in administrative decisions.
Whether the act of the National Council for Higher Education recalling the Certificate of equivalence by a letter dated 25th August, 2010 upon a directive by Major Rtd Kakooza Mutale, a Senior Presidential Advisor, contravenes your petitioner’s right to natural justice and a fair and just treatment in administrative decisions.
Whether the recall of your petitioner’s Certificate of Equivalence by the National Council for Higher Education without giving her a hearing contravenes articles 28(1), 42 and 44 and thus null and void.
Whether the matter of your petitioner’s academic qualifications upon which the Certificate of equivalence was recalled is res judicata.
Whether the act of the National Council for Higher Education recalling your petitioner’s Certificate of Equivalence without giving her a hearing violets her right to participate in politics enshrined under article 38 of the Constitution.
Whether the petitioner is entitled to the declarations and remedies sought.
 LEGAL REPRESENTATION:
At the hearing of this petition, Mr. Kenneth Kakuru appeared for the petitioner, Ms Christine Kahwa, a Principal State Attorney of the 1st respondent, represented the 1st respondent while Mr. Edward Wakida represented the 2nd respondent.
 DETERMINATION OF ISSUES:
We have carefully studied the seven issues which were framed at the Scheduling Conference. We think that they are worded extravagantly and repetitiously. They can be conveniently and adequately dealt with under four issues which we reframe as follows:-
Whether the petition raises issues for constitutional interpretation.
Whether the act of the National Council for Higher Education recalling the Certificate of Equivalence issued to the petitioner on 8th December 2005, by a letter dated 25th August, 2010 is inconsistent with and or is in contravention of articles 28(1), 8, 42 and 44 of the Constitution.
Whether the matter of the petitioner’s academic qualifications upon which the Certificate of Equivalence was recalled is res judicata.
Whether the petitioner is entitled to the declarations and remedies sought.
Whether the petition raises issues for constitutional interpretation.
Arguing this issue for the petitioner, Mr. Kenneth Kakuru submitted that the major issue raised in the petition is the violation of the petitioner’s right to a fair hearing as enshrined in article 28 of the Constitution. He contended that the 2nd respondent’s act of recalling the Certificate of Equivalence without giving the petitioner the opportunity to defend herself violated her constitutional rights and as such, she is entitled to the constitutional course of action provided for in article 137(3) of the Constitution. He cited many authorities including Baku Raheael Obudra vs Attorney General Const. Appeal No.1 of 2003 and Ken Lukyamuzi vs Attorney General and Anor Constitutional Appeal No.2 of 2007. He called upon us to decide the issue in the affirmative.
In reply, the first respondent simply submitted that the petition does not raise any cause of action against the Attorney General and that in any case the petition raises no matters for constitutional interpretation. In their view, the petitioner should have filed an action in the High Court to review the decision of the NCHE. Counsel invited us to throw the petition out of court as incompetent.
The thrust of the 2nd respondent’s argument on this issue is that the petition does not raise issues for constitutional interpretation because the 2nd respondent did not revoke the petitioner’s Certificate of Equivalence but merely recalled it for further investigation during which the petitioner would be given opportunity to defend her academic qualification. In his view, this petition was brought prematurely as the 2nd respondent had not yet done anything that contravenes any provision of the Constitution. Counsel called upon us to dismiss the petition, as it was in his view, incompetent.
This issue is about whether this petition raises matters for constitutional interpretation. Put differently, the respondents are contending that the petition discloses no cause of action under article 137 of the Constitution. This matter has been the subject of consideration in the Supreme Court of Uganda in Major General Tinyefuza vs Attorney General Constitutional Appeal No.1 of 1997 (S.C.) (unreported), Serugo vs Kampala City Council, Const. Appeal No.2/98 (S.C) and Baku Raphael Obudra & Anor vs Attorney General, Const. Appeal No.1 of 2003.
In the latter case, the Supreme Court per Kanyeihamba, JSC (as he then was) had these comments to make on the issue:-
“In the case of Major General Tinyefuza v Attorney General, Const. Appeal No.1 of 1997 (S.C), (unreported), this Court considered what is a cause of action in cases involving the interpretation of constitutional instruments. It was said that:
‘A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment in court…’ (Per Oder, J.S.C.).
In the case of Serugo v Kampala City Council, Const. Appeal No.2/98 (S.C.), certified edition 1999-2000, it was observed that generally,
‘a cause of action in a plaint is said to be disclosed if three essential elements are pleaded namely, pleadings
i) of existence of the plaintiff’s right,
ii) violation of that right and
iii) of the defendant’s liability for that violation.’
As for constitutional petitions, Mulenga, J.S.C. put it this way,
‘A petition brought under this provision (137(3) in my opinion, sufficiently discloses a cause of action, if it describes the act or omission complained of and shows the provision of the Constitution with which the act or omission is alleged to have been contravened by the act or omission, and pray for a declaration to that effect.’”
In this petitioner, the petition alleges that she was granted, in 2005, a Certificate of Equivalence as required by article 80(1) (c) of the Constitution in order to qualify to be elected as a Member of Parliament of the Republic of Uganda. The petition alleges that the act of the 2nd respondent recalling her Certificate of Equivalence without giving her a hearing to defend her qualification contravenes her right guaranteed by article 28(1) of the Constitution. She has described the act of the respondent complained of, and shows the provisions of the Constitution allegedly contravened by the act and prays for a declaration to that effect. In our view, this petition complies on all fours with the requirements of a cause of action as described in the authorities which have been cited above.
As for the 1st respondent, it was submitted that the petition did not mention any act or omission committed by him that contravened any article of the Constitution. Therefore, the petition did not disclose any cause of action against him and should be dismissed. It is true that the petition does not mention any act or omission of the 1st respondent which contravenes the Constitution. However, in all constitution petitions, where the interpretation of the Constitution is involved, the Attorney General is a statutory respondent by virtue of the provision of sections 4(2), 5(2), 6(4) & (1) and (4) and section 8(6) of the Constitutional Court (Petitions and References) Rules, 2005 which require that the Attorney General be served with the Court process in all constitutional petitions and applications. In this case, the 1st respondent was served with the court process and in fact, he filed an answer to the petition.
In the result, we hold that this petition discloses a cause of action against the respondents. It raises matters for constitutional interpretation. The first issue is answered in the affirmative.
Whether the act of the National Council for Higher Education recalling the Certificate of equivalence issued to the petitioner on 8th December 2005 by a letter dated 25th August, 2010 is inconsistent with and or is in contravention of articles 28(1), 38, 42 and 44 of the Constitution.
In order to determine this issue, it is necessary to examine, first, the nature of the act of the 2nd respondent which the petitioner alleges contravened her constitutional rights enshrined in article 28(1) of the Constitution. On 10th August, 2010, Major (Rtd) Kakooza Mutale, who is a Special Political Advisor to His Excellency the President, wrote a letter to the Executive Director, National Council for Higher Education on behalf and on the headed paper of the Office of the President as follows:-
“Our Ref: AQP/01/10
10th August, 2010
The Executive Director
National Council for Higher Education
Plot 34, Cavers Crescent
P. O. Box 76
RE: FALSE/FORGED ACADEMIC QUALIFICATIONS FOR MS. ANIFA BANGIRANA KAWOOYA
This Office is in receipt of a petition dated 30/12/2009, duly lodged in by Hon. Theodore Ssekikubo, a male adult Ugandan of sane mind and Member of Parliament for Lwemiyaga Constituency in Sembabule District. Please, see a self-explanatory photocopy of the same herewith attached and marked as annexture “A” for you ease of reference. (sic)
In the fore-said petition, Hon. T. Ssekikubo was challenging and/or alleging that Ms Anifa? Bangirana Kawooya’s Academic Qualifications upon which she was admitted in Nkumba University were false/forged.
Subsequently, this Office has been conducting a thorough investigative research into the issues raised by Hon. T. Ssekikubo therein the said petition, and as a resultant, we have been in position to secure the respective findings and opinions from the Government Analysts (Handwriting Experts) dated 06/08/2010 and 07/08/2010 as per our requests dated 05/08/2010 and 06/08/2010 respectively, and photocopies of the same are hereto attached and marked as annextures “B1”, “B2” & “C1”, “C2”.
The effect of the fore-mentioned two (02) professional REPORTS in regard to the self-explanatory contents therein the Academic Registrar’s letter dated 24/01/2006 re: NU/26/5/2006 and duly addressed to the Director CID of P. O. Box 2973, Kampala (please, see a photocopy of the same hereto attached and marked as annexture “D”) is that the basis of Ms. Anifa Bangirana Kawoya’s admission for the three (03) years’ Degree Course in Development Studies has been erased because of the already established forgeries by the Handwriting Expert, as clearly reflected therein annextures “B1”, “B2” & “C1”, “C2”.
In light of the above said impeccable new evidence which conclusively show the acts of forgeries committed by the person of Ms. Anifa Bangirana Kawooya, this Office therefore, address you as hereunder:-
That: you are implored to accept the genuiness of the documentary findings (new evidence) of our said investigative research.
That; being the In-Charge of the supervisory body of Universities and other Tertiary Institutions in the Country, you are hereby asked to cause Nkumba University, and any other Institutions(s), that may have acted on such false/forged Academic Certificates to take immediate and effective remedial and prohibitive actions(s) which should include the re-calling and cancellation of the fore-said Degree awarded to Ms. Anifa Bangiran Kawooya on the strength of the said false/forged Diploma Certificates.
That; also being the In-Charge of the equating body of all Academic Qualifications awarded by Private Universities and Tertiary Institutions in Uganda, you are hereby asked to upheld the State duty of SAFE-GUARDING the unsuspicious Public/Wanaichi against people like Ms. Anifa Bangirana Kawooya who go around masquerading that they have genuine Academic Qualifications whereas they deliberately possess forged/fake Academic Documents.
By copy of this letter. The relevant/concerned authorities i.e. the Cabinet Minister of Education & Sports, Minister for Higher Education and Permanent Secretary – Ministry of Education Sports accordingly informed/notified, and therefore, requested to join hands with National Council for Higher Education in causing Nkumba University to perform the required remedial and prohibitive action(s) of re-calling and cancelling the Degree Certificate it awarded to Ms. Anifa Bangirana Kawooya since the Academic basis/ground for her admission have been proved faulty (intentionally forged) as fore-stated hereinabove.
Please, oblige and act accordingly, and also keep this Office posted immediately thereafter taking your appropriate actions(s)
Maj. Rtd kakooza Mutale
The Rt. Hon. Speaker, Parliament of the Republic of Uganda.
The Chairperson – NRM Disciplinary Committee.
The Hon. Minister of Education and Sports.
The Hon. Minister of State for Higher Education.
The Inspector General of Government.
The Permanent Secretary, Ministry of Education & Sports.
The Clark to Parliament of Uganda.
The Chairperson – NRM Electoral Commission.
The Commissioner for Higher Education.
The Secretary – UNEB.
The Director of CID – C/o CID Hqtrs Gef/38/06.
The Academic Registrar – Nkumba University.
The General Secretary – National Chamber of Commerce & Industry.
Mr. Boney M. Katamba.
Mr. James Mwandha.
Ms. Anifa Bangirana Kawooya.
Two weeks later, on 25th August 2010, the Executive Director of the 2nd respondent wrote to the petitioner the letter already referred to in which he recalled the Certificate of Equivalence claiming that “With the information available to us, we write to recall the Certificate of Equivalence issued to you on December 08, 2005 several No.NCHE/PAR/05/005 for further investigation.” He claimed in the letter that he was doing this upon a complaint received from NRM Electoral Commission dated 23rd August 2010.
We shall now consider the meaning and effect of recalling the petitioner’s Certificate of Equivalence and whether it affected her constitutional rights under the Constitution as spelt out in this issue.
Meaning of Recall
The Certificate of Equivalence was issued to the petitioner by the NCHE after she petitioned that body to do so in order for her to satisfy the constitutional requirements before she could be nominated for election as a Member of Parliament. It was issued after due inquires to the institution – Nkumba University – which gave her a Degree that she wished to rely upon for nomination. They certified that the degree was genuine. The NCHE also received clearance from the CID Department of Uganda Police that after due investigation, they were satisfied that the petitioner qualified to be nominated Member of Parliament. The Certificate which was issued to the petitioner enabled her to stand and be elected as Woman Member of Parliament for Sembabule District during the 2006 elections. Though her election was challenged in all Uganda’s superior courts on the grounds that she was not academically qualified to be elected as a member of Parliament, the High Court and the Supreme Court held that she was qualified to do so. The effect of recalling the Certificate of Equivalence would be to leave her without evidence of academic qualification which would render her vulnerable to challenges in the next elections that she was not qualified to stand for nomination. Indeed, it is noteworthy that the letter to recall her Certificate of Equivalence was written only a few weeks before nominations for members of Parliament for the forthcoming 2011 general elections. Questions which come to mind are:-
Why recall the Certificate at this point in time after five years of silence from NCHE?
What is the relevance of Kakooza Mutale and the President’s Office in this matter?
Could the NCHE investigate the petitioner’s qualifications despite categorical holdings by the High Court of Uganda and the Supreme Court of Uganda that she was academically qualified to be nominated as Member of Parliament?
Can such a recall, which definitely adversely affects the right of the petitioner to stand for a public office, be done without giving her a right to be heard?
We heard the 2nd respondent’s argument that the purpose of the recall was so that further investigations could be carried out in light of new evidence that had come into their possession. That during those further investigations, the petitioner would have been given a chance to be heard. We do not find any merit in this argument. The only new evidence that NCHE had received was that one provided by Major Mutale. He claimed that he had IMPECCABLE NEW EVIDENCE which conclusively showed that the petitioner had forged her academic qualifications. He urged the NCHE to:-
accept the genuineness of his findings.
recall and cancel the Certificate of Equivalence
Protect the public from masqueraders like the petitioner who use forged papers.
It is now common knowledge that Major Kakooza Mutale had no powers or authority from the President or the Presidents Office to investigate the petitioner. (See the disclaimer on record from the Principal Private Secretary to His Excellency the President.) Even if he had any authority, he could not conclude that his evidence was impeccable when he did not afford the petitioner any hearing on the matter at all.
In one of his affidavits, Prof. Kasozi the Executive Director of NCHE swore that:-
“I believe the NCHE exercised due diligence and established beyond reasonable doubt that the applicant’s impugned papers were false”
Yet he never at any time gave the petitioner a hearing before establishing “beyond reasonable doubt” that her papers were false.
This was a very serious misconception on the part of Major Kakooza Mutale and Prof. Abdu Ksozi which is totally inconsistent with the letter and spirit of the 1995 Constitution. The recall was done in bad faith in view of its timing which appears to have been designed to unlawfully prevent the petitioner from being nominated for 2011 elections. The NCHE could have completed their investigations first before recalling the Certificate of Equivalence. In this case, the recall was done after allegedly completing their investigations in which they found “impeceable” evidence” and “established beyond reasonable doubt” that the petitioner was guilty. Under the protection provided by article 28 of the Constitution, the recall was a nullity and cannot be permitted to stand.
The Right to a fair hearing
This right is protected in our Constitution in articles 28(i), 42 and 44(c) of the Constitution. For ease of reference we reproduce them hereunder:-
Right to fair hearing
(1) “In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.”
Right to just and fair treatment in administrative decisions
Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.”
Prohibition of derogation from particular human rights and freedoms:
“Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms:-
the right to fair hearing;
Clearly, the right to a fair hearing is an absolute right which cannot be derogated from. Numerous decisions of the Supreme Court of Uganda and those of the Constitutional Court of Uganda have said so.
In the instant case, the 2nd respondent took a decision to withdraw the right of the petitioner to participate in the politics of this country without giving her any opportunity to be heard thus contravening the above provisions of the Constitution. That decision cannot be allowed to stand. This issue is answered in the affirmative.
Whether the matter of the petitioner’s academic qualifications upon which the Certificate of Equivalence was recalled is resjudicata.
The term ‘resjudicata’ is defined and explained in section 7 of the Civil Procedure Act (Cap.65) as follows:-
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such a court.”
The meaning of resjudicta is also expounded in BLACK’s LAW DICTIONARY EIGHT EDITION as follows:-
“1. An issue that has been definitely settled by judicial decision.
2. An affirmative defence barring the same parties from litigating a second law suit on the same claim or any other claim arising from the same transaction or a series of transactions and that could have been – but was not – raised in the first suit.
The author of the dictionary explains that resjudicata has three essential elements:-
An earlier decision on the issue.
Final judgment on the merits
The involvement of the same parties, or parties in privity with the original parties.
Simply put, the petitioner alleges in this issue that the matter of her academic qualifications was already rejudicata and the 2nd respondent, which exercises quasi – judicial power when issuing or recalling the Certificate of Equivalence, had no right to reconsider the issue through any further investigations or recall. She claims that the matter has been subject of litigation in the three courts of record of this country and decided in her favour. By this petition, she seeks an order against the second respondent or any other person or authority from revisiting the issue. She relies on the decision of the Supreme Court in Election Petition Appeal No.25 of 2007 Joy Kabatsi vs Anifa Kawooya and Electoral Commission in which the court upheld a decision of the High Court of Uganda at Masaka in Election Petition No.1 of 2006 to the effect that the petitioner (Anifa Kawooya) was academically qualified to be elected as a member of Parliament. In a unanimous judgment of the Supreme Court, Justice Kanyeihamba, J.S.C (as he then was) stated:-
“First, in a lengthy and detailed consideration of the background facts and circumstances leading to the petition, the learned trial judge, Moses Mukiibi, J, ably discussed and resolved the material facts and pertinent issues argued before him. In my view, his findings and conclusions on the first part are correct on whether or not the appellant was qualified to stand as a Parliamentary candidate for the Sembabule woman seat, the learned judge said.
‘I therefore answer issue No.4 in the affirmative that the 1st respondent at the time of the election possessed a degree from Nkumba University, a qualification which is higher than the prescribed minimum academic qualifications for election as a Member of Parliament.’
At the inter-parties scheduling conference in the Court of Appeal the issues framed for determination did not include determination of qualifications of the 1st respondent nor is it one of the grounds of the appeal. Consequently, in my opinion, for counsel for the appellant to raise the same matter in prayer (c) and later make submissions upon the same is not proper.
In my view, where a candidate presents a qualification which is higher than the minimum required for nomination for any post, it is not enough for his or her opponents to argue that the same high qualification was based on a forgery or something irregular, nor is sufficient for a spokesperson of the institution in which the high qualification was obtained to suggest that had the institution known that fact they would not have admitted the candidate or awarded the said qualification. Those who make such allegations need to do more than merely allege:- they need to show that as a result of the allegations, the awarding institution of the higher qualification or another equivalent to “A” level or some other classification subsequently cancelled or withdrew the award of the disputed qualification. I would therefore agree with the learned trial judge that the appellant failed to prove that the respondent was not qualified to stand as Woman Member of Parliament.” [Emphasis ours]
The 2nd respondent says that the decision of the Supreme Court does not apply to it because it was never a party to it and therefore the principle of resjudicata does not arise.
The Election Petition suit (supra) was filed in the High Court in Masaka by one Joy Kabatsi. She claimed that this petitioner was not qualified to stand as a member of Parliament. The petitioner was sued together with the Electoral Commission. The current respondents both of whom are Government agencies, like the Electoral Commission, did not seek to be joined as parties to the suit. Yet, like the Electoral Commission, they have the duty to defend and enforce the observance of article 80 of the Constitution which lays down qualifications for members of Parliament. If they had applied to be joined, most probably the court would not have refused them. All along the 2nd respondent claims it had evidence that the petitioner was not qualified to stand as an MP. It did not produce the evidence. The High Court held that the petitioner was qualified to stand. Joy Kabatsi appealed to the Court of Appeal on other matters but not on academic qualifications of the petitioner. It is presumed that she accepted the High Court verdict on the matter. However, when she lost the petition in the Court of Appeal, she appealed to the Supreme Court where she sought to resurrect the matter of the academic qualifications of the petitioner. The above quoted holding of Justice Kanyeihamba, J.S.C., settled the matter. Thereafter the respondents, who knew what was going on kept quiet and they continued to do so until one, Major Kakooza Mutale moved the 2nd respondent to stop the petitioner from being nominated to stand for parliamentary elections which took place in November 2010.
We do not think that the second respondent has right to investigate or recall the academic qualifications of the petitioner now when the matter was settled by the highest court of this country in which it could have voiced its concerns but chose not to do so. The 1st respondent had a similar right but did not seek to exercise it. The matter is now res judicta and the respondent cannot now resurrect it. We decide this issue in the affirmative.
In view of our findings on the above three issues, the petitioner is entitled to all declarations and remedies as prayed. The issue is also determined and answered in the affirmative.
In the result, this petition succeeds and is allowed with costs to the petitioner.
Dated at Kampala this …2nd …day of …February…2011
Hon. Justice A.E.N. Mpagi-Bahigeine
DEPUTY CHIEF JUSTICE
Hon Justice A. Twinomujuni
JUSTICE OF APPEAL
Hon. Justice S.B.K. Kavuma
JUSTICE OF APPEAL
Hon. Justice A.S. Nshimye
JUSTICE OF APPEAL
Hon. Justice M.S. Arach Amoko
JUSTICE OF APPEAL